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Civil Appeal No. 18 of 1988, decided on 25th June, 1988

O. XXII, R. 4 Legal representatives Failure to bring on record Penalty of abatement when not to be imposed Decree granted against dead person not a nullity where he had compromised and consented to grant of decree Defendant during his lifetime had accepted plaintiffs" plea of adverse possession over suit land and consented to grant of decree in " their favour Legal representatives of such defendant need not to be brought on record after his death because he had left no interest to contest suit Legal representatives of a deceased defendant would have to be brought on record where he had a right to contest and held interest in that right at the time of his death Penalty of abatement proposed in R. 4 of 0. XXII, C . P. C . however, could rot be imposed on plaintiffs for their failure to bring on record legal representatives of deceased defendant where through a compromise during his lifetime, he had surrendered all his rights in suit land in favour of plaintiffs Plaintiffs thereafter would become legal representatives of such deceased defendant after his death, for the purpose of suit land Defendant at the time of his death held no right or interest in suit property No necessity therefore, remained to bring on record deceased defendants" legal representatives on record Decree passed against deceased defendant after his death would not be a nullity because same was passed in accordance with settlement arrived at between him and the plaintiffs.

0. XXII, R. 4 &. 0. XXIII, R. 3 Compromise Grant of decree after death of consenting party -Effect Lawful compromise between plaintiffs and defendant recorded Decree granted in accordance with such compromise after death of defendant would not entail penalty of abatement as such defendant held no interest in property at the time of his death Decree granted by Court to the extent of share of deceased defendant would not amount to nullity in the eye of law.

Muhammad Nawaz Khan for Appellants.

Sardar Muhammad. Hussain Khan for Respondents

This appeal is directed against an order dated 29th December, 1987, passed by the Additional District Judge Bagh, whereby the appeal filed ,by Ghulam Din and others (respondents Nos.l to 3) against an order dated 2nd of June, 1.979, passed by sub Judge Rawala kot was allowed and, the appeal filed by the appellants against the same order was dismissed.

2. Briefly stated, the facts of this case are that respondent No.l filed a suit for possession of land measuring 22 Kanals and 11 Marlas comprising Survey No.662 situate in village Kuiyan Tehsil Rawalakot against the appellants. on the basis of title which was resisted by the appellants defendants on the ground that their father purchased the suit land through sale deed, dated 8th of January, 1950 and they were also in adverse possession of it.

3. The appellants also filed a separate suit to seek declaration to the effect that they .are owners of the suit land on the basis of sale deed dated 8th of January, 1950 and their adverse possession over it has also ripened into ownership, therefore, the respondent defendants have no interest, whatsoever, to it. The improvements were also claimed by them. This suit was resisted by the respondents on the ground that they are, in fact, the owners of this land.

4. The trial Judge consolidated both the suits and after their trial, found that the appellants failed to prove that they were the vendees of it or their adverse possession over it had ripened into ownership. The claim with regard to the improvements, was also rejected. He granted a decree for possession of the land measuring 18 Kanals and one Marla in favour of the respondents but their suit with respect to rest of the land i.e. four Kanals and 10 Marlas was dismissed because Fazal Din one of the co owners in the suit land compromised with the appellants: He therefore, granted a decree for land measuring four Kanals and 10 Marlas comprising Survey No. 662 with an house standing over it in favour of the appellants on the basis of a compromise dated 13th February, 1963 whereby Fazal Din (defendant) son of Nawab Khan had.. accepted their ownership over it,

5. Both the parties went in appeal in the Court of Additional District Judge, Bagh against the order dated 3rd June, 1979 mentioned in the preceding paragraphs. The .learned Additional District Judge allowed the appeal filed by the respondents, dismissed the one filed by the appellants and granted a decree for possession of whole of Survey No.662 in favour of the respondents.

6. It was found by the learned Additional District Judge that the appellants did not implead the legal representative of one of the defendants, namely, Fazal Din who died during the pendency of the suit, thus the suit filed by the appellants has abated and the decree passed against said Fazal Din (the dead person) in favour of the appellant in a nullity, therefore, the appellants cannot claim any right on the basis of it and cannot resist the suit for possession filed by the respondents and this order of the learned Additional District Judge Bagh is a subject matter of the present appeal.

7. The counsel for the appellants prayed that the legal representatives of a person, party to the suit or appeal, who dies during the pendency of it, are required to be brought on the file, provided that person holds any interest in the property at dispute at the time of death. Here in this case, Fazal Din surrendered all his rights in favour of the appellants through compromise dated 13th February, 1963 and, therefore, he had no interest in the suit land thereafter, as such, there was no necessity of impleading his legal representatives in the suit or appeal.

8. To take up the point of validity of the decree passed or, the basis of compromise dated 13th February, 1963, he argued that this decree has been formally passed after the death of Fazal Din yet Fazal Din confessed the judgment during his lifetime, therefore, it cannot be accepted to have been passed against a dead person, as such, it is not a nullity in the eye of law.

9. The counsel for the respondents submitted that it was necessary for the appellants to implead the legal representatives of Fazal Din in the appeal, as was done by the respondents in their counter appeal, filed against the same order, as was required by Order XXII, Rule 4, C.P.C. and the failure of the appellants to comply with the mandatory provisions of law, has caused abatement of their suit, thus the first appellate Court has rightly dismissed the suit filed by the appellants.

10. In this appeal, the following points are needed to be resolved:

(i) When Fazal Din, defendant, through compromise dated 13^th February, 1963, accepted the appellants" adverse possession over the suit land and consented to the grant of a decree in their favour, whether he remained a necessary party to the suit, being contested by the appellants with rest of the defendants to the extent of their share in the suit land and on his death, the appellants" failure to bring on record his legal representatives; entails abatement of the suit; and

(ii) Whether the decree passed against Fazal Din, after his death on the basis of a consent given by him, will be a nullity and no rights will accrue to the appellants decree holders on the basis of it.

11. It is laid down in Order XXII, Rule 4, C.P.C: that where one of the two or more defendants dies and the right does not survive against the surviving defendant, alone, the Court, shall on application, cause the legal representatives of the defendant (deceased) to be made party and shall proceed with the suit and where. within the time limited by law no application is made the suit shall abate as against the deceased defendant.

12. This rule envisages that if there is a right at contest and the defendant (deceased) holds interest in that right, at the time of his death and he leaves behind a person to represent him, the plaintiff is bound to make an application to the Court to cause his legal representatives to be made party to the suit.

13. In the light of the provisions of .Order XXII, Rule 4, C.P.C. if the point at dispute, in the present case, is seen, the penalty o abatement proposed in .this rule, cannot be imposed on the plaintiff appellants for their failure to bring on record the legal representatives "of Fazal Din because through a compromise dated 13th February, 1963 he surrendered all his rights in the suit land in. favour of the appellants and thereafter, the appellants became his legal representatives for the purpose of this land at the time of his death, he held no right or interest in the suit land, therefore, when there remains no interest of Fazal Din in the suit land at contest, there arises no necessity to bring on record his legal representatives.

14. The legal view that a decree passed against a dead person is a nullity, is well reasoned. The decree means "formal expression of the rights of the parties" and it in incumbent upon the Court to make thorough investigation with regard to the points at contest before it, before making formal expression touching that right. A point in dispute can properly be probed into only if the parties at dispute and interested in that point, are heard but when a person against whom a suit is filed in the Court, is dead and the Court holds the trial and passes a decree against the dead man it will be one sided trial and the object of administration of justice shall not be achieved.

15. Here, in this case, the situation is otherwise, and the decree passed against Fazal Din, cannot be held to be a nullity because this decree was passed, according to the settlement arrived at between Fazal Din and the appellants. At the time, the appellants filed a suit to seek declaration that they were in adverse possession over Survey No.662, Fazal Din was alive and during the course of the trial, he compromised with the appellants, accepted their rights over the suit land and made a statement in the Court to endorse the settlement but the Court did not pass the decree as there were other defendants too, who were contesting the suit.

16. Order XXIII, Rule 3, C.P.C. lays down that if it is proved to the satisfaction of the Court that the suit has been adjusted wholly or in part by a lawful compromise, the Court shall cause the compromise to be recorded and shall pass a decree in accordance with that.

17. Fazal Din, the defendant filed a compromise deed dated 13th, February, 1963 and accepted that the appellants were in adverse possession of the land comprising Survey No.662 thus he surrendered all his rights in the land in favour of the appellants, hence the. rights of Fazal Din, divested from him the moment he accepted that; the appellants were in adverse possession of the land and as a right once divested from one owner, cannot remain in the air till the Court concludes the trial or makes a formal declaration, therefore, it immediately invested in the appellants as was intended to be done. The appellants stepped into the shoes of Fazal Din on 13th February, 1963 and became the sole owner of Survey No.662 to the extent of the share of Fazal Din, therefore, the decree which was formally passed by the trial Court on 2nd June, 1979 on the basis of al compromise dated 13th February, 1963, cannot be held to be a nullity

18. As found earlier, the mischief of abatement of the suit for the failure of the appellants to bring on record the legal representatives of Fazal Din, cannot be made applicable in this case and the decree passed by the lower Court with regard to the share of Fazal Din, cannot be held to be a nullity in the eye of law, therefore, accepting the appeal, the order passed by the learned Additional District Judge Poonch at Bagh, is set aside and the decree passed by the trial Court, stands restored. The parties are left to bear their own costs throughout.

A . A . / 338 / H . A . Appeal accepted.

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